To Whom Does the Government Lawyer Owe the Duty of Loyalty When Clients are in Conflict?

32 Pages Posted: 28 May 2010

See all articles by William Josephson

William Josephson

Fried, Frank, Harris, Shriver & Jacobson LLP

Russell G. Pearce

Fordham University School of Law

Date Written: 1986

Abstract

This Article focuses on the continuing debate on the ethical obligations of government lawyers: do government lawyers represent the people or do they represent a client? The Article explains that the dominant conception that government lawyers represent the people actually results in government lawyers representing themselves. After examining alternative approaches to determining the identity of the government lawyer’s client, the Article concludes that only one approach is consistent with both the ethical rules and our republican system of government. The government lawyer’s client properly understood is an elected official or, in certain cases, an agency head with legal authority independent of elected officials. As a general matter, through elections or law, the people have chosen these individuals - and not the government lawyer - to represent their interests. The only exception to this approach is the elected government lawyer whom the people have actually designated to represent their interests. The Article describes how the conflicts rules offer government lawyers a guide for determining their obligations when governmental clients disagree.

Keywords: government lawyer, solicitor general, government lawyer ethics, conflicts of interest

Suggested Citation

Josephson, William and Pearce, Russell G., To Whom Does the Government Lawyer Owe the Duty of Loyalty When Clients are in Conflict? (1986). Howard Law Journal, Vol. 29, p. 539, 1986, Fordham Law Legal Studies Research Paper No. 1616719, Available at SSRN: https://ssrn.com/abstract=1616719

William Josephson

Fried, Frank, Harris, Shriver & Jacobson LLP ( email )

One New York Plaza, 27th Floor
New York, NY 10004
United States
212-859-8220 (Phone)

Russell G. Pearce (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6834 (Phone)
212-636-6899 (Fax)

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